MANNARSWAMI AYYAR Vs. RAMASWAMI NAYAKKAN

JUDGEMENT

(1.) This civil revision petition is presented against the order of the lower appellate Court allowing execution to proceed in the following circumstances: On 29 September 1919 a money decree was passed in favour of the -three minor brothers represented by their mother as next friend. On 11 April 1921 while they were still minors, the mother put in an execution petition which seems to have been infructuous. On 14 July 1925 she put in a fresh execution petition. By that time, two of the brothers had attained majority. The judgment-debtor contended that the execution petition was barred by limitation, and that, as two of the brothers had attained majority, the eldest could give for all the three a valid discharge of the decree, and that therefore the decree-holders could not avail themselves of the provisions of Section 7, Lim. Act. Both the lower Courts have held on the authority of Lakshmanan Chetty v. Subbiah Chetty that the eldest brother could not so give a discharge and therefore Section 7 could be availed of and the decree could be executed. They did not go into the questions whether as a matter of fact the eldest son was the manager and as such could give a valid discharge on account of all, or as to whether a period of more than three years had elapsed between the date of attainment of majority by the eldest son and 14 July 1925. They decided the case on the pure question of law laid down in Lakshmanan Chetty V/s. Subbiah Chetty .

(2.) Now it seems to us clear that they are mistaken as to the scope of that ruling, which is itself based on the Privy Council ruling in Ganesh Row V/s. Tuljaram Rao [1918] 36 Mad. 295. The former lays down that a guardian ad litem or next friend of a minor cannot give a valid discharge for a decree debt except with leave of the Court notwithstanding the fact that he was the manager of the joint family of which the minor was a member. The points to be noted in that case are that the father and the managing member died two months after the decree, which itself was passed in October 1913, that from the date of his death until the attainment of majority by the eldest son in December 1914 none of those who were jointly entitled to apply for the execution of the decree was in a position to give a good and legal discharge for the debt, and therefore time was not running against them until the disability ceased, and that execution application was put in by the eldest brother within three years of the attainment by him of his majority. It was a clear case where Section 7 applied. It is true that the learned Chief Justice goes on to say at p. 925: seeing that one of the decree-holders is still a minor, there is really no question of limitation arising in the case.

(3.) Since, however, the execution petition was put in within three years of the eldest son attaining majority that remark in so wide a form, is obiter and not necessary for the decision of the case. It would be a question of fact in the present case whether when the eldest son attained majority he was in a position to give a good and legal discharge of the decree without the concurrence of the other decree-holders, and if he could, with or without leave of the Court to do so, it may be that time would begin to run but we do not decide this point here finally but leave it open to the lower Court to give its own decision on this point. It will therefore have to be decided in this case whether the eldest brother attained majority more than three years before 14 July 1925 and whether, if not he was such a person as could, with or without the leave of the Court give a valid discharge without the concurrence of the others, and the case will have to be decided in accordance with that principle. Clearly if an application by the eldest brother on 14 July 1925 would not be saved by Section 7, an application on that date by the next friend could not be entertained.